Gavel Gamut By Jim Redwine
(Week of 18 July 2016)
STOCK IN TRADE
Abraham Lincoln who was a storekeeper before he was a lawyer is credited with the statement:
“A lawyer’s time and advice is his stock in trade.â€
But if an attorney becomes a judge what is her/his stock in trade? For what do we pay our judges? It is not their time; judges receive salaries. It is not their advice; judges are not supposed to give advice, only decisions based on the evidence and the law.
And why do we need somebody whose job it is to not give advice, i.e. to keep their personal opinions to themselves and decide cases objectively?
Society has plenty of people whose role it is to suggest and execute policy. County commissioners and council people, mayors, governors and presidents come to mind.
We also have lots of people whose job it is to pass legislation and fund it. State legislatures and Congress have those duties.
Such executive and legislative bodies have not only the right but also the obligation to express opinions and advocate for their positions. We elect these people for those very purposes. We may agree or disagree with our Executive and Legislative bodies as we choose.
But where do we look for objective decisions on important matters? What gives us confidence that issues wrangled over by individuals or such public servants as presidents and senators will be resolved fairly and impartially by that third branch of government, the Judiciary?
Judges have no armies or militia. Judges cannot impose taxes or pass legislation. Why do we even listen to much less comply with a judge’s decision, especially one we disagree with?
When I have taught judges from other countries such as Palestine or Ukraine or Russia they invariably ask me how I get citizens to accept my court judgments and follow them. In many other countries the concept of the Judiciary as a separate, equal and independent branch of government is impossible for the judges themselves to grasp. They are so used to court decisions being based on the political leanings and connections of judges nobody expects an unbiased judgment. America is supposed to be different.
Of course, we are all partisan. If a sitting judge voices a political opinion we agree with, we not only may not mind, we might applaud. Yeah for our side! However, should a judge portray prejudice against persons or positions we support we lose confidence in our legal system. And that is the only stock in trade judges have, i.e., confidence the judge is impartial.
The momentary elation we experience when some judge violates her/his duty and publicly rails for or against a particular person, party or position fades rapidly when we realize the judge is acting from prejudice. This is so because we know that we may have to face a judge who decides cases on whim not law.
There are many reasons America remains the land of the free but one of the most vital reasons is our independent judiciary. Are America’s judges human? Yes. Are they prejudiced? Yes. Is the perception they are going to decide cases without allowing their prejudices to control their view of the evidence important. You know it!
